Subletting and Assignment in Residential Tenancies (19:X): Difference between revisions
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= August 10, 2021}} | ||
{{LSLAP Manual TOC|expanded = landlord}} | {{LSLAP Manual TOC|expanded = landlord}} | ||
== '''A. Right to Assign or Sublet and Duty to Obtain Consent''' == | == '''A. Right to Assign or Sublet and Duty to Obtain Consent''' == | ||
According to s 34 of the RTA, a tenant may assign or sublet his or her interest in a tenancy agreement with the written consent of the landlord (s.34(1)); in other words, the landlord’s written consent is always required for an assignment or subletting of the agreement. However, the landlord must not be arbitrary or unreasonable in withholding consent if the tenant has a fixed term tenancy with six months or more remaining (s 34(2)). A tenant may apply for an Arbitrator’s order where a landlord has unreasonably withheld consent: see RTA s 65(1)(g). Section 34(3) stipulates that a landlord must not charge a tenant anything for considering, investigating or consenting to an assignment or sublease. | According to s 34 of the ''RTA'', a tenant may assign or sublet his or her interest in a tenancy agreement with the written consent of the landlord (s.34(1)); in other words, '''the landlord’s written consent is always required for an assignment or subletting of the agreement.''' However, the landlord must not be arbitrary or unreasonable in withholding consent if the tenant has a fixed term tenancy with six months or more remaining (s 34(2)). A tenant may apply for an Arbitrator’s order where a landlord has unreasonably withheld consent: see ''RTA'' s 65(1)(g). Section 34(3) stipulates that a landlord must not charge a tenant anything for considering, investigating or consenting to an assignment or sublease. | ||
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Generally, sub-tenants have many of the same rights against the tenant they rent from as do tenants against the original landlord, with the exception that they cannot themselves dispute the actions of the “main” landlord, as this can only be done by the original tenant. This only applies, however, if a sublet is actually created. Where an individual takes on a roommate, and that roommate does not either hold a sublet approved by the landlord or is subletting a clearly defined, separate portion of the property, that roommate will not be considered a sub-tenant. As a result, individuals moving in as roommates may wish to ensure either that they are named on a written lease as a co-tenant or tenant in common. If they are not named on such a written lease, they will have no recourse against the landlord at the RTB unless they can prove that a tenancy agreement has been created between the two in some other way. | Generally, sub-tenants have many of the same rights against the tenant they rent from as do tenants against the original landlord, with the exception that they cannot themselves dispute the actions of the “main” landlord, as this can only be done by the original tenant. This only applies, however, if a sublet is actually created. Where an individual takes on a roommate, and that roommate does not either hold a sublet approved by the landlord or is subletting a clearly defined, separate portion of the property, that roommate will not be considered a sub-tenant. As a result, '''individuals moving in as roommates may wish to ensure either that they are named on a written lease as a co-tenant or tenant in common.''' If they are not named on such a written lease, they will have no recourse against the landlord at the RTB unless they can prove that a tenancy agreement has been created between the two in some other way. | ||
Tenants wanting to create sublets must retain an interest in the tenancy. This is done by making sure that the sublease ends before the first tenant’s lease with the original landlord does. For example, if a tenant has a fixed term tenancy agreement that lasts for six more months and wants to sublet to a sub-tenant, that sublease must, at maximum, be for six months less a day so that the tenant still retains an interest in the tenancy. In a periodic tenancy, there must be an understanding that the sublet continues on a month-to-month basis, less one day, in order to preserve the original tenant’s interest in the tenancy. Where a sublet continues for the full period of the tenancy, it likely amounts in law to an assignment instead. See '''Policy Guideline 19: Assignment and Sublet'''. | Tenants wanting to create sublets must retain an interest in the tenancy. This is done by making sure that the sublease ends before the first tenant’s lease with the original landlord does. For example, if a tenant has a fixed term tenancy agreement that lasts for six more months and wants to sublet to a sub-tenant, that sublease must, at maximum, be for six months less a day so that the tenant still retains an interest in the tenancy. In a periodic tenancy, there must be an understanding that the sublet continues on a month-to-month basis, less one day, in order to preserve the original tenant’s interest in the tenancy. Where a sublet continues for the full period of the tenancy, it likely amounts in law to an assignment instead. See '''Policy Guideline 19: Assignment and Sublet'''. | ||
A sub-lessee has privity of estate and contract with the head landlord and is bound by all the covenants in the original lease. | |||
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